--- N.W.2d ----, 2015 WL 1086789 (S.D.)
Supreme Court of South Dakota.
ESTATE OF Wayne Kenneth DUCHENEAUX, Plaintiff and Appellant,
Douglas DUCHENEAUX, Defendant and Appellee.
Argued Nov. 18, 2014.
Decided March 11, 2015.
Appeal from the Circuit Court of the Sixth Judicial Circuit Tripp County; JOHN L.
Terry L. Pechota of Pechota Law Office, Rapid City, South Dakota, Brad A.
Schreiber of The Schreiber Law Firm, Prof LLC, Pierre, South Dakota, Attorneys for
plaintiff and appellant.
Casey N. Bridgman, Clay A. Anderson, of Bridgman & Anderson Law Firm, Prof LLC,
Wessington Springs, South Dakota, Attorneys for defendant and appellee.
GILBERTSON, Chief Justice.
*1 [P 1.] The Estate of Wayne Kenneth Ducheneaux appeals the Sixth Judicial
Circuit Court's denial of its motion for summary judgment and that court's
dismissal of the Estate's action for lack of subject matter jurisdiction. The
Estate argues Wayne Ducheneaux (the Decedent) lacked the requisite mental
capacity, or was unduly influenced by Douglas D. Ducheneaux (Ducheneaux), when the
Decedent transferred two quarter sections of Indian trust land located in Tripp
County, South Dakota, to Ducheneaux. Although the Estate acknowledged the circuit
court had no authority to directly return title of the trust land to the Estate,
the Estate nevertheless asserts the circuit court had personal jurisdiction over
Ducheneaux and, therefore, could have compelled Ducheneaux to make application to
the Bureau of Indian Affairs to transfer the two quarter sections back to the
Estate. We agree that the circuit court lacked jurisdiction over the parcels held
in trust by the United States and affirm.
Facts and Procedural History
[P 2.] The Decedent was an enrolled member of the Rosebud Sioux Tribe and a
lifelong resident of Tripp County, South Dakota. During his final years, the
Decedent suffered from a number of adverse medical conditions. After suffering a
fall in May 2011, the Decedent was admitted to the Winner Regional Hospital on May
18, 2011, and then transferred to the Winner Nursing Home on May 25, 2011. At this
time, two of the Decedent's daughters-Darnel Swanson and Debra Calloway-jointly
held power of attorney for their father. The Decedent modified his power of
attorney on June 1, 2011, to include a third daughter, Dawn Daughters. The three
daughters were unable to agree on a care plan for the Decedent, and after a
disastrous meeting at the nursing home on June 13, 2011, the nursing home
requested a guardian be appointed for the Decedent.
[P 3.] Ducheneaux filed for guardianship of his father in the Sixth Judicial
Circuit Court on July 1, 2011. Ms. Swanson and Dana Mercer-another of the
Decedent's daughters-instituted a guardianship proceeding in the same court on
July 5, 2011. After the Decedent withdrew power of attorney from Ms. Swanson and
Ms. Calloway on July 6, 2011, Ms. Daughters-who still had power of
attorney-removed the Decedent from the nursing home on July 7, 2011. Thereafter,
the Decedent resided with, and was cared for by, Ms. Daughters and Ducheneaux, the
Decedent's son. The circuit court appointed Ducheneaux guardian of the Decedent
and Gary Fenenga, CPA, as conservator of the Decedent. The Decedent passed away on
November 18, 2011.
[P 4.] Prior to his passing, the Decedent transferred three quarters of land
located in Tripp County to Ducheneaux, who is also an enrolled member of the
Rosebud Sioux Tribe. Tripp County lies in the diminished portion of the original
Rosebud Indian Reservation. See generally Rosebud Sioux Tribe v. Kneip, 430 U.S.
584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977). Two of the quarters are held in trust
by the United States. The Decedent transferred the first quarter FN1 to Ducheneaux
in July 2011, prior to Ducheneaux's appointment as guardian. The Decedent
transferred the second FN2 and third FN3 quarters to Ducheneaux in August 2011,
after Ducheneaux's appointment as the Decedent's guardian. The first parcel was
owned and held by the Decedent and is not at issue in this appeal. The second
parcel was held in trust by the United States for the Decedent. The third parcel
was held in trust by the United States for the Rosebud Sioux Tribe, for the
benefit of the Decedent.
FN1. This parcel is described as the Northeast Quarter (NE1/4) of Section
Nineteen (19), Township Ninety-seven (97) North, Range Seventy-seven (77)
West of the 5th P.M., Tripp County, South Dakota.
FN2. This parcel is described as the Northwest Quarter (NW1/4) of Section
Thirty-four (34), Township Ninety-seven (97) North, Range Seventy-seven (77)
West of the 5th P.M., Tripp County, South Dakota.
FN3. This parcel is described as the Northwest Quarter (NW1/4) of Section
Fourteen (14), Township Ninety-seven (97) North, Range Seventy-eight (78)
West of the 5th P.M., Tripp County, South Dakota.
*2 [P 5.] In November 2011, the court-appointed conservator filed an action
against Ducheneaux and Ms. Daughters seeking, among other things, to recover the
transferred parcels. The circuit court dismissed that action in February 2012, due
to the Decedent's death, but the matter was pursued again by the Decedent's
personal representative in August 2012. The Estate introduced testimony from
Teresa A. Marts, M.D., expressing her opinion that the Decedent was not competent
to make important decisions at the time the Decedent transferred the parcels. The
Estate moved for partial summary judgment, requesting the circuit court find that
Ducheneaux did not, and never did, have an interest in the parcels that the
Decedent transferred to him. The circuit court denied the Estate's request,
determined that it lacked subject matter jurisdiction over the parcels held in
trust by the United States, and dismissed the action. The circuit court directed
the entry of final judgment pursuant to SDCL 15-6-54(b).
[P 6.] The Estate raises one issue in this appeal: Whether the circuit court
possessed the equitable power to compel Ducheneaux to make application to the
Secretary of the Interior for the transfer of Indian trust property to the Estate.
Standard of Review
[P 7.] A challenge to the subject matter jurisdiction of a court is a question
of law that we review de novo. State ex rel. LeCompte v. Keckler, 2001 S.D. 68, P
6, 628 N.W.2d 749, 752. As such, "this Court gives no deference to the circuit
court's conclusions of law." Cable v. Union Cnty. Bd. of Cnty. Comm'rs, 2009 S.D.
59, P 19, 769 N.W.2d 817, 825. Because "[s]ubject matter jurisdiction is conferred
solely by constitutional or statutory provisions [,] ... [it] can neither be
conferred on a court, nor denied to a court by the acts of the parties or the
procedures they employ." Id. P 20, 769 N.W.2d at 825 (quoting Application of Koch
Explor. Co., 387 N.W.2d 530, 536 (S.D.1986)) (internal quotation marks omitted).
Analysis and Decision
[P 8.] The Estate argues the Decedent was not mentally competent to transfer
land to Ducheneaux and that Ducheneaux exerted undue influence on the Decedent in
order to prompt the transfers. The Estate does not argue the circuit court had
jurisdiction over the trust land itself. Rather, the Estate argues that, because
the circuit court had personal jurisdiction over Ducheneaux, the circuit court
could have compelled Ducheneaux to "make application to the Bureau of Indian
Affairs to return the two quarters of trust land to the estate." In essence, the
Estate suggests the circuit court did not need to have subject matter jurisdiction
over the trust land in order to effect its transfer back to the Estate. Because
the circuit court did not decide this case on its merits, the ultimate question of
whether the parcels at issue should be transferred back to the Estate is not
properly before us. On the jurisdictional question, we agree with the circuit
court and affirm.
*3 [P 9.] It is correct that courts have long recognized that "[a] court of
equity, having authority to act upon the person, may indirectly act upon real
estate in another state, through the instrumentality of this authority over the
person." Fall v. Eastin, 215 U.S. 1, 8, 30 S.Ct. 3, 6, 54 L.Ed. 65 (1909).
[W]hen the subject matter of a suit in a court of equity is within another state
or country, but the parties within the jurisdiction of the court, the suit may
be maintained and remedies granted which may directly affect and operate upon
the person of the defendant, and not upon the subject-matter, although the
subject-matter is referred to in the decree, and the defendant is ordered to do
or refrain from certain acts toward it, and it is thus ultimately but indirectly
affected by the relief granted. In such case, the decree is not of itself legal
title, nor does it transfer the legal title. It must be executed by the party,
and obedience is compelled by proceedings in the nature of contempt, attachment,
Id. at 11, 30 S.Ct. at 8. However, this exception to the normal territorial
limitations of a court is limited and well defined. Id. at 8, 30 S.Ct. at 6.
"[T]he power to convey must not be a power given by such foreign court, but a
power conferred either by statute or by act of the holder of the legal title...."
Joy v. Midland State Bank, 26 S.D. 244, 251, 128 N.W. 147, 149 (1910). Here, the
United States holds legal title to the trust land at issue. The Estate argues this
doctrine is applicable because the Estate asks only that Ducheneaux be compelled
to make the appropriate applications to the Bureau of Indian Affairs for transfer
of the trust land. Because the United States would still retain its usual power to
grant or deny the application, see 25 C.F.R. s 152.23 (2014) (requiring federal
approval for any contemplated "sale, exchange or gift of trust or restricted
land"), and because the circuit court had personal jurisdiction over Ducheneaux,
the Estate concludes such a compulsion is within the power of the circuit court.
[P 10.] There is no contested issue that the circuit court had personal
jurisdiction over Ducheneaux. However, the United States Supreme Court has
recognized two additional restrictions "to the assertion of state regulatory
authority over tribal reservations and members. First, the exercise of such
authority may be pre-empted by federal law. Second, it may unlawfully infringe 'on
the right of reservation Indians to make their own laws and be ruled by them.' "
White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43, 100 S.Ct. 2578,
2583, 65 L.Ed.2d 665 (1980) (citations omitted) (quoting Williams v. Lee, 358 U.S.
217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959)). Furthermore, South Dakota's
Constitution expressly acknowledges the supremacy of the federal government in
matters pertaining to Indian lands. It states, in part:
That we, the people inhabiting the state of South Dakota, do agree and declare
that we forever disclaim all right and title to the unappropriated public lands
lying within the boundary of South Dakota, and to all lands lying within said
limits owned or held by any Indian or Indian tribes; and that until the title
thereto shall have been extinguished by the United States, the same shall be and
remain subject to the disposition of the United States; and said Indian lands
shall remain under the absolute jurisdiction and control of the Congress of the
United States ....
*4 S.D. Const. art. XXII, s 2 (emphasis added).FN4 Thus, the inquiry cannot end
with a determination of personal jurisdiction. Rather, we must ask whether
granting the Estate's request and thereby indirectly affecting the disposition of
Indian trust lands: (1) has been preempted by Congress, (2) would interfere with
tribal sovereignty, or (3) would otherwise disrupt Congress's absolute
jurisdiction and control over the two quarter sections of land at issue here.
Therefore this case is controlled by state and federal constitutional principles
not relevant to, or considered by, cases like Fall v. Eastin or Joy v. Midland
State Bank-neither of which involved a state's ability to affect title to real
property located within Indian Country.
FN4. The United States Supreme Court had the opportunity to construe this
Constitutional clause in United States v. Rickert, 188 U.S. 432, 23 S.Ct.
478, 47 L.Ed. 532 (1903). A South Dakota county attempted to sell fixtures
and personal property owned by an Indian for non-payment of taxes imposed on
those fixtures and property, which were located upon trust land. Id. at 433,
23 S.Ct. at 478-79. The county argued that it was not affecting title to the
trust land itself because it classified fixtures and other items as personal
property. Id. at 434, 23 S.Ct. at 479. In rejecting this restrictive
interpretation of the limitations of South Dakota article XXII, s 2, the
Court said the state could not do indirectly what it was prohibited to do
directly. Id. at 439-41, 23 S.Ct. at 481-82.
[P 11.] After properly framing the issue, it is apparent federal legislation in
this area has preempted the circuit court from exercising whatever equitable power
it might have otherwise had over Ducheneaux. The power of preemption derives from
the Supremacy Clause, U.S. Const. art. VI, s 2, and "occurs when Congress ...
expresses a clear intent to pre-empt state law, ... where there is implicit in
federal law a barrier to state regulation, where Congress has legislated
comprehensively, ... or where the state law stands as an obstacle to the
accomplishment and execution of the full objectives of Congress." La. Pub. Serv.
Comm'n v. F.C.C., 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369
(1986) (citations omitted). "The tradition of Indian sovereignty over the
reservation and tribal members must inform the determination whether the exercise
of state authority has been pre-empted by operation of federal law." White
Mountain Apache Tribe, 448 U.S. at 143, 100 S.Ct. at 2583. This determination "is
not dependent on mechanical or absolute conceptions of state or tribal
sovereignty, but has called for a particularized inquiry into the nature of the
state, federal, and tribal interests at stake [.]" Id. at 145, 100 S.Ct. at 2584.
The foregoing analysis is not required, however, when an act of Congress clearly
expresses a constraint on state authority. See Williams, 358 U.S. at 220, 79 S.Ct.
at 271 (emphasis added) ("Essentially, absent governing Acts of Congress, the
question has always been whether the state action infringed on the right of
reservation Indians to make their own laws and be ruled by them.").
[P 12.] In this case, Congress has clearly indicated a barrier to state
jurisdiction. In 1953, in furtherance of a now-defunct policy of assimilating the
various Indian populations around the nation, "Congress ... provided a method
whereby States [could] assume jurisdiction over reservation Indians [.]"
McClanahan v. State Tax Comm'n of Ariz., 411 U.S. 164, 177, 93 S.Ct. 1257, 1265,
36 L.Ed.2d 129 (1973) (citing 25 U.S.C. s 1322(a) (1968)). A state that met
certain requirements was permitted, by Congress, to assert "jurisdiction over any
or all such civil causes of action arising within such Indian country or any part
thereof as may be determined by such State to the same extent that such State has
jurisdiction over other civil causes of action [.]" 25 U.S.C. s 1322(a) (2012).
Despite such broad-reaching jurisdiction, however, Congress expressly withheld
from those states the jurisdiction "to adjudicate, in probate proceedings or
otherwise, the ownership or right to possession of [ Indian property held in trust
by the United States] or any interest therein." 28 U.S.C. s 1360(b) (2012)
(emphasis added). South Dakota rejected the assumption of greater responsibility
for, and broader jurisdiction over, the Indian population of this State. See
generally Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164 (8th Cir.1990). The
jurisdiction of a South Dakota court, therefore, is subject to even greater
restriction than that expressed in 28 U.S.C. s 1360(b).
*5 [P 13.] The Supreme Court of Montana has previously considered 28 U.S.C. s
1360(b) in a related context. In re Marriage of Wellman, 852 P.2d 559 (Mont.1993).
Wellman involved divorce proceedings between a wife, who was a member of the
Blackfeet Tribe, and a husband, who was not an Indian. The wife filed for divorce
in a Montana district court, and the husband asked that court for an equitable
distribution of marital assets, including 4,000 acres of Indian trust land-held by
the United States for the benefit of the wife-accumulated during the marriage. In
affirming the Montana district court's dismissal for lack of subject matter
jurisdiction over the trust land, the Montana Supreme Court said, "In light of
[the] statutory circumscription [of 28 U.S.C. s 1360(b),] even where the state has
assumed jurisdiction, we infer the complete absence of Congressional intent to
authorize or allow a state that has not assumed jurisdiction to adjudicate Indian
trust land in any way whatsoever." Wellman, 852 P.2d at 564. We agree. If those
few states that have been granted broader civil jurisdiction by Congress are not
empowered to adjudicate the right to possession of Indian trust land, it is
difficult to imagine that Congress intended for the rest of the states-including
South Dakota and Montana-to hold such power.
[P 14.] The United States Supreme Court decided a similar case over a century
ago. In Kalyton v. Kalyton (Kalyton I ), 74 P. 491 (Or.1903), reh'g denied,
Kalyton v. Kalyton (Kalyton II ), 78 P. 332 (Or.1904), rev'd, McKay v. Kalyton,
204 U.S. 458, 27 S.Ct. 346, 51 L.Ed. 566 (1907), the Oregon Supreme Court decided
a case that involved a dispute between purported heirs of a member of the Cayuse
Tribe, each of whom claimed the right to possession of trust land allotted to the
decedent. Upon recognizing the plaintiff as the legitimate daughter of the
decedent, the Oregon Supreme Court held the plaintiff was "entitled to the
possession" of the trust property. Id. at 494-95. The defendants petitioned for
rehearing, arguing the state court lacked jurisdiction over the trust land. McKay,
204 U.S. at 460, 27 S.Ct. at 347. The Oregon Supreme Court denied the petition,
deciding that the "determination by a state court of the heirs of a deceased
Indian allottee is not ... an interference with the primary disposal of the soil,
but is in aid of the [federal] government in protecting the rights of its cestui
que trust." Kalyton II, 78 P. at 333. The United States Supreme Court held the
Oregon state courts lacked jurisdiction, rejecting "[t]he suggestion made in
argument that the controversy ... presented involved the mere possession, and not
the title, to the allotted land, ... since the right of possession asserted of
necessity is dependent upon the existence of an equitable title in the claimant
... to the ownership of the allotted lands." McKay, 204 U.S. at 469, 27 S.Ct. at
350. In other words, the United States Supreme Court has already held that "a
decree as to the right of possession would ... interfere with the title or trust
interest of the United States." See id. at 460, 27 S.Ct. at 347.
*6 [P 15.] Aside from 28 U.S.C. s 1360(b), we find guidance in O'Connell v.
Hamm, 267 N.W.2d 839 (S.D.1978). In that case, this Court was asked to impose a
constructive trust on trust land held by the United States. Although the land at
issue was located within the borders of the Pine Ridge Indian Reservation, as
opposed to external trust land, our conclusion in that case is relevant here.
There has been no showing that any available tribal and federal remedies have
been exhausted by the plaintiffs. Because the parties involved are enrolled
Indians and the land involved is reservation trust land, we have no reason to
believe that any judgment by this court would be enforceable. We have no power
to affect title to the land involved. We may not adjudicate the disposition of
property over which we have no control; such disposition is certainly beyond our
Id. at 842. The same rationale applies to trust land within a disestablished
reservation or outside of a diminished reservation-either case falls within the
status of "Indian County" under 18 U.S.C. s 1151. DeCoteau v. Dist. Cnty. Court
for Tenth Judicial Dist., 420 U.S. 425, 428, 95 S.Ct. 1082, 1085, 43 L.Ed.2d 300
(1975) ("It is common ground here that Indian conduct occurring on the trust
allotments is beyond the State's jurisdiction, being instead the proper concern of
tribal or federal authorities.").
[P 16.] Even if we were to conclude the circuit court's decision on the merits
would be given full faith and credit (at least in federal court), we are convinced
the involvement of the circuit court in hearing the merits of the Estate's claim
would "stand[ ] as an obstacle to the accomplishment and execution of the full
objectives of Congress." See La. Pub. Serv. Comm'n, 476 U .S. at 368-69, 106 S.Ct.
at 1898. Such a result would ultimately invade upon Congress's absolute
jurisdiction and control over Indian lands: if no state-court-ordered application
is entered herein, there will not be a subsequent transfer by the Bureau of Indian
Affairs. Although the requested remedy is not a constructive trust, but rather an
order compelling Ducheneaux to make application for the transfer of the disputed
properties, the result, in either case, is ultimately an interference with tribal
and federal control over Indian trust lands. See McKay, 204 U.S. at 469, 27 S.Ct.
[P 17.] In asserting that "[c]ourts have used their personal jurisdiction over
a defendant to require that trust land, over which the court had no jurisdiction
to divide directly, be conveyed personally by defendant pursuant to court
order[,]" the Estate relies on Conroy v. Frizzell (Conroy I ), 429 F.Supp. 918 (D
.S.D.1977), aff'd, Conroy v. Conroy (Conroy II ), 575 F.2d 175 (8th Cir.1978).
Conroy I involved a divorce action between two enrolled members of the Oglala
Sioux Tribe. 429 F.Supp. at 920. The wife filed for divorce in the Oglala Sioux
Tribal Court, which granted the divorce and awarded her, among other things,
roughly half of 1,700 acres of land held in trust by the United States for the
benefit of the husband. Conroy II, 575 F.2d at 176-77. The wife was subsequently
unable to enforce the judgment and turned to the federal district court for the
District of South Dakota. Id. at 177. The district court first determined the
tribal court had jurisdiction to enter the order-i.e., the district court
determined the judgment was valid-and then enforced the tribal court judgment by
ordering the husband to make the appropriate application to the Secretary of the
Interior for the transfer of the trust land. Conroy I, 429 F.Supp. at 927-28. The
United States Court of Appeals for the Eighth Circuit affirmed. Conroy II, 575
F.2d at 184.
*7 [P 18.] The Estate's reliance on these cases is misplaced. According to the
Estate, Conroy II "makes it clear that any court with jurisdiction over a
defendant can compel the person to make application to transfer trust property
belonging to others." We see no such holding applicable to state courts. A careful
reading of both cases leads to a decidedly different conclusion than that espoused
by the Estate. The district court explicitly and deliberately stated that the case
before it was "not a case on its merits, that is, going into whether or not there
was justification for [the property division]." Id. at 179 (quoting from the
transcript of a hearing held by the district court on March 21, 1977). On appeal,
the question of whether or not the district court had the power to compel the
husband to apply for the transfer of the trust property was not heard by the
Eighth Circuit Court of Appeals; the only questions appealed to that court
involved whether or not the tribal court had proper jurisdiction to issue the
underlying divorce decree. In affirming Conroy I, the Eighth Circuit itself said,
"We do not here paint with a broad brush.... We rule narrowly upon the property
division made...." Id. at 183. Thus, the cornerstone of Conroy I and II is not
that the federal courts had personal jurisdiction over the defendant-although such
jurisdiction was obviously one requirement of those courts wielding equitable
compulsion against the defendant-rather, the emphasis of those cases is on first
identifying a valid judgment from a court of competent jurisdiction. The existence
of a valid judgment is a prerequisite to the enforcement of that judgment-by
equitable compulsion or otherwise.FN5
FN5. If this were not true, the Eighth Circuit could have saved itself eight
pages of analysis by simply recognizing the district court had personal
jurisdiction over the defendant.
[P 19.] In reading Conroy II to be "directly on point[,]" the Estate ignores
the predicate question of whether or not the circuit court was capable of
originating a valid judgment on the merits of this case. Instead, the Estate
suggests that if a federal court has jurisdiction to enforce a valid tribal court
judgment-as in Conroy I and II-then a state court has jurisdiction to adjudicate
the right to possession of Indian trust land, 28 U.S.C. s 1360(b) apparently
notwithstanding. This non sequitur conflates the inherent difference between
originating and enforcing a judgment. Consequently, we disagree with the Estate's
claim that this difference is "not a relevant distinction." Instead, we again
agree with the Supreme Court of Montana: "Conroy [II ] provides authority for a
tribal court to apportion beneficial interests in trust land in conjunction with a
dissolution action between tribal members. It has no bearing on the issue of state
court jurisdiction over Indian trust land." Wellman, 852 P.2d at 564-65. In asking
this Court to command the circuit court to actually adjudicate the right to
possession of Indian trust land, the Estate not only paints Conroy II with a broad
brush, it paints a picture altogether different than the Eighth Circuit's.
*8 [P 20.] Congress has preempted state court jurisdiction over the disposition
of Indian trust property, and the United States Supreme Court has made clear that
adjudicating the right to possession of Indian trust lands interferes with the
interests of the United States. While the Estate's requested remedy is admittedly
not an attempt to directly determine ownership of the land at issue here, a trial
on the merits-in which the Estate would argue Ducheneaux improperly became
beneficiary of the two quarter sections at issue-would necessarily center on an
argument that the Estate is entitled to a return of the land transferred to
Ducheneaux. In other words, while a trial on the merits would not run afoul of 28
U.S.C. s 1360(b) to the extent that it would not be an attempt to adjudicate the
ownership of Indian trust land, it would violate that section by virtue of
necessarily adjudicating the right to possession of land held in trust by the
United States. Because asserting jurisdiction in this case would reach beyond
wielding equitable powers to merely enforce a valid judgment issued by a court of
competent jurisdiction, we agree the circuit court did not have jurisdiction over
the subject matter of this case. Consequently, we affirm.FN6
FN6. The specter is raised that if the circuit court cannot act, the Estate
may be left without a legal remedy for a decision on the merits concerning
the claims of mental capacity and undue influence. The limited nature of the
record prevents us from determining whether another court-be it an
administrative court of the Bureau of Indian Affairs, a tribal court, or a
federal court of the United States-may have jurisdiction. Such issue was not
briefed to this Court.
[P 21.] ZINTER and SEVERSON, Justices, and MYREN, Circuit Court Judge, and
KONENKAMP, Retired Justice, concur.
[P 22.] MYREN, Circuit Court Judge, sitting for WILBUR, Justice, disqualified.
[P 23.] KERN, Justice, not having been a member of the Court at the time this
action was assigned to the Court, did not participate.